5.  The applicant was born in 1962 and lives in Skopje.
6.  On 14 May 2007 an investigating judge at the Kočani Court of First Instance (“the trial court”) opened an investigation against the applicant on suspicion of drug trafficking. His pre-trial detention was also ordered. The decision stated inter alia:
“[O]n 10 May 2007 [the applicant] had bought, from an unidentified seller in Istanbul, 9.5 kg of heroin, which [the applicant] had packed in nineteen plastic bags ... He had hidden the packed drugs in textile goods acquired in Turkey and had loaded them in the cargo area of [a truck] owned by the company ... where he is employed in a position of responsibility. On 13 May 2007 [the applicant] tried to bring the drugs illegally [into the respondent State] ...”
7.  The decision also referred to a statement given by the applicant on 14 May 2007, which was not submitted to the Court. In their observations the respondent Government referred to that statement, in which the applicant had stated, inter alia, as follows:
“... S.B. and T. were present in the car park. They loaded goods that belonged to several manufacturers into the truck and the trailer. During that time I was present in the car park, but I was walking around the truck searching for parts to repair it. I did not observe the loading. As I said, it was S. and T. (referring to S.B. and T.S.) who observed and carried out the loading (of the truck).”
8.  The Government also referred to a statement given on the same day by G.Z., a witness who was identified in the criminal proceedings as the applicant’s partner. G.Z. stated:
“... [A]t about 10 a.m. we arrived at the car park, where goods were starting to be loaded (into the truck). I was present when ten bags containing textile goods were loaded. At about 3 p.m. I left for Skopje with another truck. While I was in the car park, goods were loaded by S.B. and T.S, both from Pristine. After S.B. left, T.S. continued the loading ...”
9. The applicant did not dispute the above statements.
10. On 16 May 2007 the Kosovo[1] Organised Crime Bureau in Pristine interviewed S.B., a carrier from Pristine who transported goods from Turkey to Kosovo, and T.S., who worked with S.B. The record of the questioning was in English and contained the full names and addresses of both S.B. and T.S., citizens of Kosovo. According to the record, S.B. stated, inter alia:
“... [A]ll goods of [non-regular clients] are checked in advance by me or [my] employees, whereas we don’t check at all goods of [clients we have dealt with] for a long time ... T.S. and I were present [while the goods were loaded]. I was present while half of the trailer was loaded and then, at about 12 am. (on 10 May 2007), I left for Pristine ... [They] (the clients who delivered the [last shipment of] goods) were regular clients whom I know ... [A]t about 2-3 pm. (on 13 May 2007) G.Z. called to tell me that his truck had been stopped and that some forbidden goods had been found in two containers, to one of which the name tag of a certain B.S. had been affixed. Inside, there had been another label with the letter “S”, which referred to the company [S.T.] that had loaded the goods in the truck. (Despite the fact that S.B. did not know any B.S., he had not checked the containers) [since] [T]hey had been sent by the company S.T.; we know these people and we have a verbal agreement to transport goods ... My employee T.S. wrote in his notebook just the name ‘B.S.’ in order to know to whom the goods belonged. He registered these goods under the number 382‑383. The label indicating that these goods were T-shirts was affixed in person by an employee of the company S.T.”
11.  T.S. confirmed S.B.’s statement regarding different practices in dealing with goods sent for transportation by regular and non-regular clients. He also acknowledged that he was responsible for registering the goods being transported from Turkey to Kosovo. He stated, inter alia:
“... On 11 May 2007 goods were loaded the whole day ... During that time, the dispatcher of the goods and I were present (in the car park). I was also in charge of the goods that were loaded in the truck. As far as I noticed there was nothing suspicious. They (the clients who delivered the goods) were regular clients ... the letter ‘S’ (referring to the name tag inside the two containers where drugs were found) referred to the company which loaded the goods in the truck. The letter ‘S’ concerns goods that belong to the company S.T. or a person called S. (the co-owner of the company S.T.) who had personally dispatched that day the goods that were stopped in Macedonia ... I just wrote in my records the name B.S. in order to know to whom the goods belonged. I registered these goods under the number 382-383. S. attached personally the label [indicating] that the goods were T-shirts. I did not check the goods because S.J. told me ‘I vouch for the goods ... of the company S.T., especially for goods with the letter ‘S’.”
12.  Both S.B. and T.S. denied having had any connection with the case.
13.  According to an indictment filed with the trial court on 30 May 2007, on 10 and 11 May 2007 the applicant had loaded 9.079 kg of heroin, which was already packed in nineteen plastic bags, together with some textile goods, into a truck that belonged to the company D.B., which was managed and owned by the applicant. On 13 May 2007 the applicant, driving the truck, had entered the respondent State at the Delčevo border-crossing, where the drugs were found by customs.
14.  The trial court held two hearings, on 28 June and 13 July 2007. On the latter date it heard oral evidence from the two customs officers who had discovered the drugs in the truck, and from Mr A.N., the authorised representative of a carrier association. The latter produced evidence regarding responsibility for the transportation of goods. He stated, inter alia:
“... The dispatcher and recipient are responsible for the goods being transported ... The driver, i.e. the carrier, is responsible for the quantity of goods and any damage. The dispatcher is responsible for the contents of a shipment, together with the customs officers on the shipping post ... The driver can monitor the number of packages. He or she cannot check the contents of the shipment. The driver can act only if he or she notices that undeclared goods have been loaded ... The checking of a shipment loaded in a truck is carried out by the exporter or the customs officer. The quality of the merchandise is checked by the exporter and the importer. The carrier, i.e. the driver, does not check the quality of the merchandise ...”
15.  On the same date, the applicant, who was legally represented, asked the trial court to admit the statements of S.B. and T.S. given before the Kosovo Organised Crime Bureau in Pristine. The trial court rejected that request on the ground that there was already sufficient evidence to establish the facts.
16.  On 13 July 2007 the court rendered a judgment in which it found the applicant, who had no previous criminal record, guilty, and sentenced him to five years and three months’ imprisonment. The operative provisions stated that the court found the applicant guilty of drug trafficking since on 10 and 11 May 2007 he had loaded and hidden drugs in a truck and transported them from Turkey into the respondent State. The court dismissed the applicant’s arguments that he had not known to whom the drugs belonged, that he had used different border-crossing points on his return to the respondent State for practical purposes, and that S.B. had been present when the goods were loaded into the truck in Turkey. The following items of evidence were listed in the judgment: oral evidence given by the applicant, G.Z., two customs officers and Mr A.N.; search reports regarding the truck and the applicant dated 13 May 2007; a TIR carnet and invoices; certificates in respect of temporarily seized objects issued on 13 May 2007; and an expert report drawn up on 15 May 2007 confirming that the drugs found in the truck were heroin. The court also issued a forfeiture order in respect of the truck.
17.  The court found that on 10 May 2007 textile goods had been loaded, in the presence of the applicant, G.Z. and S.B., in the truck in the car park in Istanbul. After ten to fifteen containers had been loaded, G.Z. had left the car park, just after S.B. had done so. The next day, textile goods had continued to be loaded. The applicant had been present in the car park while the goods were loaded into the trailer and the truck. The applicant had hidden the drugs, already packed in nineteen plastic bags, in two containers with other textile goods. B.S.’s name tag had been affixed to the containers. The court stated, inter alia:
“That the applicant loaded the drugs into the truck was confirmed by G.Z., who said that S.B. and he had left (the car park) and that the applicant had remained on the scene while the textile goods were loaded into the truck. That [the applicant] knew that he was transporting drugs was confirmed by the fact that he changed border-crossing points on his return, that is, he used border-crossing points where customs control was less strict. Transportation through those border-crossing points was longer and more expensive ... That S.B. was not present when the truck was loaded is established on the basis of G.Z.’s statement. That the applicant loaded the drugs into the truck is based on the fact that he was obliged to observe what was loaded. G.Z. confirmed that in his statement. That the drugs were stored in the central part of the truck, which was only accessible with difficulty, implies that the applicant loaded the drugs and knew that he was transporting them.
On the basis of the evidence admitted and the facts established, the court considers that the accused [was engaged in drug trafficking] since it is proven that he was aware that he was transporting drugs, previously packed and hidden in textile goods, which he loaded into the truck and brought illegally into [the respondent State]. He was thus engaged in drug trafficking.”
18.  The applicant appealed, alleging substantive procedural flaws and errors on the facts and law. He complained that the trial court had not established the truth regarding, inter alia, the person who had loaded the goods at the critical time. In this connection he referred to the statements of S.B. and T.S. (see paragraphs 10 and 11 above), in which they had stated that he had neither been personally involved nor observed the loading of the goods into the truck. After S.B. and G.Z. had left the scene, the goods had continued to be loaded by T.S., assisted by another employee – a dispatcher. The applicant referred to the trial court’s refusal to admit the statements of S.B. and T.S. in evidence (see paragraph 15 above), arguing that the Customs Bureau, which had filed the criminal complaint against him, had been in possession of those statements but had failed to submit them to the public prosecutor. That fact had been brought to the attention of the trial court, which could have obtained them easily. By refusing to request those statements proprio motu, the trial court had established the facts, and convicted him, erroneously. In the applicant’s view, those statements provided clear evidence that he had not had anything to do with the drugs. He further submitted a copy of the statements, translated into Macedonian.
19.  The applicant further complained that the judgment contained unclear and conflicting reasoning on the question whether he had loaded the drugs into the truck or he had simply been present in the car park when the drugs were loaded by other persons. He argued that loading drugs into his truck and failing to observe that drugs had been loaded into his truck were not the same thing. The applicant contended that factual gaps had been filled in by speculation.
20.  At a hearing held on 28 November 2007 in the presence of the applicant’s representatives and the public prosecutor, the Štip Court of Appeal dismissed the applicant’s appeal and upheld the trial court’s judgment. As to the applicant’s complaint regarding the evidence produced by S.B. and T.S., the court stated:
“... in refusing to admit the statements of S.B. and T.S., the trial court did not violate [the applicant’s] right to defence ... since the statements ... (were) given before the Kosovo police authorities, and the fact that [S.B. and T.S.] were not examined is of no relevance ... since the trial court correctly established, on the basis of G.Z.’s statement, that S.B. had not been present while (the goods were being loaded) into the truck where the drugs were found.”
21.  On 21 January 2008 the applicant lodged a request with the Supreme Court for an extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), in which he complained, inter alia, that his defence rights had been violated because the trial court had refused to admit the statements of S.B. and T.S. and had failed to secure their attendance at the trial despite the fact that it had known their names and whereabouts. The examination of these witnesses by the Kosovo Police Service had been requested by the national authorities after the drugs had been found.
22.  In supplementary submissions received by the Supreme Court on 10 April 2008, the applicant complained that his conviction had been based on the fact that he had used the Delčevo border-crossing, where customs control had been, as established by the trial court, less strict. In this connection he submitted a copy of his passport, which had earlier been deposited with the trial court, according to which he had used that border‑crossing on many occasions before the critical day.
23.  The applicant’s appeal was forwarded to the public prosecutor for comments. As indicated in the Supreme Court’s judgment (see paragraph 24 below), together with submissions Ovp.br. 64/08 (a copy of which was not submitted to the Court), the public prosecutor stated that the applicant’s request should be accepted.
24.  On 10 April 2008 the Supreme Court dismissed the applicant’s request and confirmed the lower court’s judgments. It held as follows:
“... (The court) considers that all the relevant facts are supported by the admitted evidence, and the (established) facts are beyond any reasonable doubt (фактичката состојба не се доведува под значително сомнение) ... [T]he lower courts, after having made a complete analysis of all the evidence, documentary and verbal, correctly and completely established all the relevant facts, especially regarding the actions that [the applicant] took at the critical time and place ... On the basis of all the admitted evidence, in particular [search records, certificates for temporarily seized objects, an expert report], statements given by witnesses, (namely) [the customs officers] and G.Z., the lower courts correctly and completely established the sequence and chronology of the events prior to and after the offence was committed.
The above-cited evidence, as well as other verbal and documentary evidence ... confirms that [the applicant] ... transported drugs – heroin, which he had earlier, in Istanbul,Turkey, hidden, together with other textile goods, and loaded into the central cargo area of [his truck] ...
The Supreme Court underlines that [the lower courts’] refusal to admit evidence proposed by the defence ... cannot be regarded as a violation of the defence rights of the convicted person. [S.B.], as confirmed by [G.Z.], was not present when the goods were loaded in Turkey ...”
25.  This judgment was served on the applicant on 29 May 2008.